Chinyere Jenkins v. State of Missouri , 131 F.3d 716 ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1968
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Chinyere Jenkins, by her next friend, *
Joi Jenkins; Nicholas Paul Winchester- *
Rabelier, by his next friend, Paula *
Winchester; Margo Vaughn-Bey, by her *
next friend, Franklin Vaughn-Bey; *
Nicholas C. Light, by his next friend, *
Marian Light; Stephon D. Jackson, by *
his next friend, B. J. Jones; Travis N. *
P e t e r , by his next friend, Debora Chadd- *
Appeals from the United States
P e t e r ; Leland Guess, by his next friend, *
District Court for the
Sharon Guess, * Western District of Missouri.
*
Plaintiffs - Appellants *
*
American Federation of Teachers, Local *
691, *
*
Intervenor below - Appellee *
*
v. *
*
State of Missouri; Mel Carnahan, *
Governor of the State of Missouri; Bob *
Holden, Treasurer of the State of *
Missouri; Missouri State Board of *
Education; Peter Herschend, Member of *
the Missouri State Board of Education; *
Thomas R. Davis, Member of the *
Missouri State Board of Education; *
Robert E. Bartman, Commissioner of *
Education of the State of Missouri; Gary *
D. Cunningham, Member of the *
Missouri State Board of Education; Rice *
Pete Burns, Member of the Missouri *
State Board of Education; Sharon M. *
Williams, Member of the Missouri State *
Board of Education; Betty Preston, *
Member of the Missouri State Board of *
Education; Jacquelline Wellington, *
Member of the Missouri State Board of *
Education; Russell Thompson, *
Member of the Missouri State Board of *
Education; School District of Kansas *
City; Dr. Henry D. Williams, *
Superintendent thereof; Terry M. Riley, *
Member of the Board of Directors; *
Lance Loewenstein, Member of the *
Board of Directors; Marilyn Simmons, *
Member of the Board of Directors; *
Sandy Aguire Mayer, Member of the *
Board of Directors; John A. Rios, *
Member of the Board of Directors; *
Darwin Curls, Member of the Board of *
Directors; Patricia Kurtz, Member of the *
Board of Directors; Edward J. *
Newsome, Member of the Board of *
Directors; Dr. Julia H. Hill, Member of *
the Board of Directors; John W. Still, *
Member of the Board of Directors, *
*
Defendants - Appellees *
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_____________
No. 97-2078
_____________
Chinyere Jenkins, by her next friend, *
Joi Jenkins; Nicholas Paul Winchester- *
Rabelier, by his next friend, Paula *
Winchester; Margo Vaughn-Bey, by her *
next friend, Franklin Vaughn-Bey; *
Nicholas C. Light, by his next friend, *
Marian Light; Stephon D. Jackson, by *
his next friend, B. J. Jones; Travis N. *
Peter, by his next friend, Debora Chadd- *
Peter; Leland Guess, by his next friend, *
Sharon Guess; *
*
Plaintiffs - Appellees *
*
American Federation of Teachers, Local *
691, *
*
Intervenor below - Appellee *
*
v. *
*
State of Missouri; Mel Carnahan, *
Governor of the State of Missouri; Bob *
Holden, Treasurer of the State of *
Missouri; Missouri State Board of *
Education; Peter Herschend, Member of *
the Missouri State Board of Education; *
Thomas R. Davis, Member of the *
Missouri State Board of Education; *
Robert E. Bartman, Commissioner of *
Education of the State of Missouri; Gary *
D. Cunningham, Member of the *
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Missouri State Board of Education; Rice *
Pete Burns, Member of the Missouri *
State Board of Education; Sharon M. *
Williams, Member of the Missouri State *
Board of Education; Betty Preston, *
Member of the Missouri State Board of *
Education; Jacquelline Wellington, *
Member of the Missouri State Board of *
Education; Russell Thompson, Member *
of the Missouri State Board of *
Education; *
*
Defendants - Appellants *
*
School District of Kansas City; Dr. *
Henry D. Williams, Superintendent *
thereof; Terry M. Riley, Member of the *
Board of Directors; Lance Loewenstein, *
Member of the Board of Directors; *
Marilyn Simmons, Member of the Board *
of Directors; Sandy Aguire Mayer, *
Member of the Board of Directors; John *
A. Rios, Member of the Board of *
Directors; Darwin Curls, Member of the *
Board of Directors; Patricia Kurtz, *
Member of the Board of Directors; *
Edward J. Newsome, Member of the *
Board of Directors; Dr. Julia H. Hill, *
Member of the Board of Directors; John *
W. Still, Member of the Board of *
Directors, *
*
Defendants - Appellees. *
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____________
Submitted: September 10, 1997
Filed: December 1, 1997
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Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
_____________
JOHN R. GIBSON, Circuit Judge.
The Jenkins Class presents an application for fees for the appeals
that resulted in our affirmance of the district court's decision denying
unitary status and approving the settlement between the State of Missouri
and the Kansas City, Missouri School District. The Jenkins Class appealed
the order approving the settlement, and the State appealed the district
court's order denying unitary status. Our decision on these appeals is
Jenkins v. State of Missouri, 122 F.3d 588 (8th Cir. 1997) (Jenkins XIV ).
The State objects to the request for a fee because the Jenkins Class
was unsuccessful in its main goal of keeping the State in the case and
because the Jenkins Class appeal sought unsuccessfully to enhance its
victory in the district court. The State also argues that the Jenkins
Class's request should be reduced by sixty percent to account for the lack
of success on the Agreement appeal. The Jenkins Class responds that, even
though it did not succeed in its challenge to the Agreement, the Agreement
issue was inextricably intertwined with the unitariness issue on which it
did prevail. The State argues that the unitariness issue and Agreement
issues were not inextricably intertwined, and therefore the Jenkins Class
should not receive fees for briefing its appeal of the district court's
approval of the Agreement.
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The State also argues that if the Jenkins Class receives any fee, it
should be paid by KCMSD under the terms of the settlement Agreement.
The final position of the State is that, should the State not prevail
on its other arguments, the court should exclude all time requested for the
stay motion filed by the Jenkins Class and time spent by counsel for the
Jenkins Class in discussions with the media.
I.
The State first argues that the unitary status and agreement issues
were not inextricably intertwined, and thus the Class should not receive
fees for briefing the appeal of the district court's approval of the
Agreement. This argument, however, is directly contrary to the ruling of
the district court granting fees to the Jenkins Class for the trial court
activities in litigating the unitary status/Agreement issues. The district
court referred to these as inter-related claims. In affirming the district
court order, we stated in our unpublished order in Jenkins v. Missouri, No.
97-2626, 1997 WL 464173 (8th Cir. Aug. 14, 1997) (unpublished), vacated in
part on different grounds, (8th Cir. Oct. 10, 1997):
The district court's order on the motions for unitariness and
approval of the agreement demonstrates the close inter-
relationship between the issues pertaining to unitary status
and approval of the settlement. Indeed, the district court's
findings that the achievement gap had not been remedied, but
was to be remedied within three years, and that the Green1
factors, with the exception of extracurricular activities,
would be unitary within two or three years, were essentially
the factual findings undergirding the district court's approval
of the settlement between the State and the KCMSD.
1
Green v. County School Bd., 391 U.S. 430 (1968).
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Id. at **1. (Footnote omitted). The State filed a motion for rehearing
en banc with respect to that order, directed only to the issue of expert
witness fees. This court has granted the State's motion. Order of October
10, 1997. The State did not challenge that part of our order in No. 97-
2626 which concerns the same issues before us in this appeal.
The inter-relation between the Agreement issues and the unitariness
issues is demonstrated in our opinion in Jenkins XIV, 122 F.3d at 601-03.
We stated that the basic foundation of the district court's approval of the
Agreement was the assumption that KCMSD will be unitary within two to three
years. Id. at 601. We discussed in some detail the testimony of the
several witnesses. Id. at 601-02. Our discussion leaves no question that
the issues were closely inter-related. Therefore, the Jenkins Class is
entitled to a fee for both the work in defending the State's appeal of the
unitariness issue and the Agreement issues.
We further reject the State's argument that the Jenkins Class
"appealed seeking to expand their victory by defeating the District Court's
approval of the Agreement." (citing Jenkins v. Missouri, 115 F.3d 554, 560
(8th Cir. 1997), as modified, No. 96-3870, 1997 WL 629800 (8th Cir. Oct.
14, 1997) (Jenkins Fees VI)). The Jenkins Class found itself caught
between the State and KCMSD in an agreement by the two that restricted the
total amount of funds to be available for concluding the remedy for the
constitutional violations. We have no hesitation in saying that, in this
two on one struggle, the Jenkins Class's participation in the appeal was
as a whole defensive, not only in defending the ruling rejecting a finding
of unitariness, but also in attempting to escape the imposition of a
settlement to which it was not a party, the net result of which would
reduce the funds available for the remedy. Moreover, we have already held
that the Agreement issue was inextricably intertwined with the unitariness
issue, in which the Class was in this court defending its success below.
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II.
The State further argues that if fees are awarded for the Agreement
appeal, the KCMSD should be required to pay them. It argues that the
district court's order approving the Agreement affirmed by this court, as
well as the Agreement itself, requires that the KCMSD bear this burden.
The issue of attorneys' fees for the Jenkins Class is not dealt with
explicitly in the Agreement itself. The Agreement provides generally:
"[T]he Court shall not impose or order any further obligations on the State
and the State's only obligations during [the period in which the state is
still making payments] shall be those set forth in the Agreement." The
language of the Agreement recited that it was "contingent upon court
approval" and, except for the section on interim payments, would not become
binding on any of the parties unless and until final court approval was
obtained. Final court approval was said in section 2 to occur when "the
District Court approves the Agreement and such approval has been upheld by
the appellate courts, or all appeals or requests for review have been
dismissed, whichever occurs earlier." The fee application before us
concerns work performed before our judicial approval of the Agreement, and,
therefore, before the Agreement effectively altered the parties' relations.
As the long history of this litigation has demonstrated to all parties, the
litigation of the issues on the merits has been followed routinely by
requests for fees by the Jenkins Class, and upon occasion by others, and
this in turn has spawned considerable additional litigation. We have
published six opinions on fee issues,2 one of which has gone on to the
Supreme Court, and it would not be fruitful for us to
2
Jenkins v. Missouri, 838 F.2d 260 (8th Cir. 1988) (Jenkins Fees I), aff'd, 491
U.S. 274 (1989); Jenkins v. Missouri, 862 F.2d 677 (8th Cir. 1988) (Jenkins Fees II);
Jenkins v. Missouri, 931 F.2d 1273 (8th Cir.) (Jenkins Fees III), cert. denied, 502 U.S.
925 (1991); Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992) (Jenkins Fees IV);
Jenkins v. Missouri, 73 F.3d 201 (8th Cir. 1996) (Jenkins Fees V); Jenkins v. Missouri,
No. 96-3870, 1997 WL 329800 (8th Cir. Oct. 14, 1997) (Jenkins Fees VI).
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catalog the number of unpublished orders issued by this court dealing with
fees. Under these circumstances, when the State and the KCMSD entered into
an agreement to settle the claims and conclude the payments for the remedy,
we cannot believe that fee litigation was a consideration that would escape
their attention. The State and the KCMSD could have specifically dealt
with this issue had they so chosen, but they did not do so. Further, as
the Jenkins Class was not a party to the Agreement, we cannot conclude that
it is foreclosed from seeking a fee from the State for this litigation on
both unitariness and the Agreement. First, the fees were incurred by the
Jenkins Class before the action of this court in affirming the approval of
the Agreement, and secondly the final act that concludes liability of the
State, the payment of the amounts due under the Agreement, has not yet
occurred. We therefore conclude that the terms of the Agreement did not
shift to the KCMSD any liability for an award of statutory attorneys' fees
incurred in opposing the district court's adoption of the Agreement.3
III.
Finally, the State argues that time spent by the Jenkins Class
attorneys seeking a stay order should be excluded. The motion for stay of
the district court's order pending the appeal was directly related to the
appellate activity before this court. We took the motion with the case,
to be disposed of at the time of disposition on the merits. However, the
motion was not entirely without effect, since it resulted in an expedited
briefing and argument schedule for the appeal. Counsel for the Jenkins
Class deducted from its fee request some of the time two of its attorneys
recorded for the stay motion. We reject the argument that such time should
be excluded altogether.
3
On several occasions, the State refers to "the three party Agreement," evidently
overlooking our statement in Jenkins XIV: "The two constitutional violators, the State
and the KCMSD, have agreed to release one of the violators, the State, from any
further duty to the constitutional victims beyond the duty to pay the specified sums of
money. The constitutional victims are not a party to this agreement." 122 F.3d at 601.
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In one respect, the State makes a valid assertion. Attorney
Lansford's time sheets submitted with the application show approximately
one hour spent in talking to the media. We have held that public relation
efforts necessary to accomplish the objectives of the litigation may be
compensated under section 1988. Jenkins v. Missouri, 862 F.2d 677, 678
(8th Cir. 1988) (Jenkins Fees II). Since the Jenkins Class has not
informed the court of the purpose of attorney Lansford's press contacts so
that we may determine if the services were necessary to the litigation, we
disallow the hour.
IV.
We award the Jenkins Class fees and expenses as follows:
Fees
$68,295.00
Expenses $ 2,524.02
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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